Major Crimes Act – Page 9

Eighth Circuit Creates Intra-Circuit Conflict –On Same Day — in Major Crimes Act Sexual Assault Cases

December 14, 2012Matthew L.M. Fletcher1 Comment

Here are the cases:

Here is a blog post from On Brief, Iowa Appellate Blog, that details the conflict. H/t to P.T. and How Appealing.

The conflict:

In United States v. Bruguierand United States v. Rouillard, the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is–(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.’”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Eighth Circuit Affirms Sentence in Major Crimes Act Conviction at Red Lake

October 29, 2012October 29, 2012Matthew L.M. Fletcher

Here is the opinion in United States v. Cook:

US v Cook CA8 Opinion

Ninth Circuit Vacates Condition of Indian Country Sex Offender’s Supervised Release

October 23, 2012Matthew L.M. Fletcher

Here is the opinion in United States v. Wolf Child.

An excerpt:

Timothy Eric Wolf Child, a Native American, appeals a special condition of supervised release imposed by the district court after he pleaded guilty to attempted sexual abuse. The special condition, condition 9, prohibited Wolf Child from residing with or being in the company of any child under the age of 18, including his own daughters, and from socializing with or dating anybody with children under the age of 18, including his fiancée, in both cases unless he had prior written approval from his probation officer. The district court imposed the special condition without first making any specific findings regarding the necessity of restricting Wolf Child’s ability to have contact with his children and his fiancée. It did so on the basis of a record devoid of evidence supporting the need for such a restriction with respect to his intimate family members. We hold that the fundamental right to familial association, implicated by the parts of the special condition prohibiting Wolf Child from residing with or being in the company of his own daughters and socializing with his fiancée, is a “particularly significant liberty interest.” The district court was therefore required to follow an enhanced procedural requirement to make special findings on the record supported by evidence in the record, that the condition is necessary for deterrence, protection of the public, or rehabilitation, and that it involves no greater deprivation of liberty than reasonably necessary. Because the district court made no such findings regarding the imposition of the special condition, and it conducted no individualized examination of Wolf Child’s relationship with the affected family members, it committed procedural error with regard to these specific individuals. Moreover, because of the absence of any evidence in the record that would support the limitations on the fundamental liberty interests at issue, we hold that special condition 9, as applied to restrict Wolf Child’s ability to reside or socialize with his own children and with his fiancée is substantively unreasonable.

News Profile of Tulalip Tribal Judiciary

October 22, 2012October 22, 2012Matthew L.M. Fletcher

Here.

An excerpt:

Today, the judges that preside over the Tulalip Tribal Court are provided by the Northwest Intertribal Court System and aren’t tribal employees, Taylor said. The judges, Theresa Pouley and Gary Bass, both members of the Colville Confederated Tribes, have decades of legal and judicial experience.

Pouley, the Tulalips’ chief judge, is president of the Northwest Tribal Court Judges Association. She also formerly served on the board of directors for the National American Indian Court Judges Association. She’s provided testimony to the U.S. Senate Committee on Indian Affairs and last year was appointed to the federal Indian Law and Order Commission.

In remarks to the U.S. Senate in 2008, Pouley said, “No government has a greater stake in effective criminal justice system in Indian Country than the tribes themselves.”

The Tulalip Tribal Court’s expansion has been significant since 2001. That’s when the Tulalips successfully petitioned the state and federal governments to return law enforcement powers on the reservation to the tribes and federal authorities. The retrocession cleared the way for the Tulalips to create their own police force to oversee public safety on the reservation.

Tenth Circuit Vacates Criminal Sentence of Two Navajo Members and Remands for Resentencing

October 16, 2012Matthew L.M. Fletcher

Here is the opinion in United States v. Joe.

An excerpt:

We therefore hold that the district court erred when it enhanced Defendants’ offense levels for physical restraint of the victim as well as enhancing for the use of force against her. The government, which has the burden of proof of showing harmlessness, see United States v. Kieffer, 681 F.3d 1143, 1169 (10th Cir. 2012), has not argued that this error was harmless. Our cases lead us to the conclusion that it was not. If the government had argued that this error was harmless, no doubt that argument would have been centered on the fact that the district judge varied downward from the incorrectly calculated guidelines range to reach the sentence that he concluded was most appropriate in view of all of the factors listed in 18 U.S.C. § 3553(a). We have, however, emphasized the importance of the guideline range as the starting point in the process. See, e.g., Kieffer, 681 F.3d at 1170. We said there that “where the beginning point for a sentencing court’s analysis of the § 3553(a) factors is measurably wrong, the ending point usually will result from an incorrect application of the Guidelines.” Id. (emphasis in original). The government has not argued that the error is harmless, and we believe that the error is not obviously harmless. As explained herein, we remand for resentencing in both of these appeals.

Eighth Circuit Remands Major Crimes Act Case for Determination on Whether Red Lake Reservation Diminished

October 2, 2012Matthew L.M. Fletcher1 Comment

Here are the materials in United States v. Jackson:

New Scholarship on Tribal Criminal Jurisdiction

September 1, 2012September 1, 2012Matthew L.M. Fletcher1 Comment

Lindsey Trainor Golden (a former student of mine) has published “Embracing Tribal Sovereignty to Eliminate Criminal Jurisdiction Chaos” in the University of Michigan Journal of Law Reform.

From the article:

This Note argues that the current federal laws regarding tribal criminal jurisdiction are contrary to existing policies that recognize inherent tribal sovereignty, and that to fully restore tribal sover- eignty and reduce reservation crime rates, Congress should revise the MCA and the TLOA to comprehensively address the legal bar- riers that adversely affect tribes’ ability to prosecute crimes committed within their geographic borders.

Ninth Circuit Affirms Juvenile Conviction under Major Crimes Act

August 22, 2012Matthew L.M. Fletcher

Here is the opinion in United States v. H.B.

An excerpt:

H.B. appeals his adjudication as a juvenile delinquent for aiding and abetting his cousin, W.B., in committing aggravated sexual abuse against their female friend, T.T.W., on an Indian reservation.1 18 U.S.C. §§ 5031 et seq.; 18 U.S.C. § 1153(a); 18 U.S.C. § 2. On appeal, H.B. claims that there was insufficient evidence to support his adjudication. In addition, H.B. contends that the district court imposed an unreasonable sentence by ordering him to spend 18 months at a juvenile correctional detention facility followed by 12 months of juvenile delinquent supervision. We disagree, and affirm the adjudication and sentence.